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What the high court will decide -- and what the aftermath will be

The health care drama that began in the earliest days of the Obama presidency will reach its crescendo Thursday morning when the Supreme Court announces its decision on the constitutionality of the Affordable Care Act (ACA).

It has been a long, twisting road to this point: from pledges made by candidate Barack Obama when he ran for the presidency in 2008, to months of bargaining by congressional Democrats with interest groups such as the pharmaceutical and insurance industries, to 2010 campaign charges of "death panels," to legal challenges battled in lower federal courts.

“If ‘Obamacare’ is not deemed constitutional, then the first three and a half years of this president's term will have been wasted on something that has not helped the American people,” Republican presidential contender Mitt Romney said Tuesday as he campaigned in Virginia.

Four legal issues are at stake:

  • First, the justices must decide whether challenges to the law can be resolved now, or whether those who seek to overturn the law must wait until 2015 when the federal government begins collecting penalties from people who refuse to buy insurance, as required by the ACA. The consensus among legal observers is that the justices have decided to not wait and that the challenges to the law will be resolved with Thursday’s decision.
  • Second, the court must decide whether the ACA’s individual mandate – the requirement that most uninsured people purchase health insurance – forces people into commerce and thus renders that part of the law unconstitutional. The Constitution gives Congress the power to regulate interstate commerce, but not the power to force a non-buyer to become a buyer.
  • The third and perhaps most crucial question to be decided: If the justices do rule that the mandate is unconstitutional, can that part of the law be surgically removed while leaving the remainder intact, or will the justices decide the entire law must be struck down because Congress designed each of its parts to work together?
  • Finally, the fourth issue: Is the ACA’s Medicaid provision, which adds nearly 30 million more people to the insurance program for low-income Americans, unconstitutionally coercive by forcing states to go along with the expansion, or is it a legitimate enlargement of an existing program?

Thursday’s ruling could be a deafening political thunderclap, but may be followed by a kind of lull as Congress tries to figure out what, if anything, it can do to respond to the ruling.

Senate Democrats may try to put some ideas to a vote, even though they know the Republican-controlled House is unlikely to act on their proposals.

But Sen. Ron Wyden, D-Ore., a member of the Senate Finance Committee, which drafted much of the law, predicted that congressional Democrats wouldn’t spring into action immediately to offer bills replacing the ACA if the court strikes down parts of it. “You don’t get a decision like this and if there are changes in the law, jump right out and say, ‘We’ll now propose the following’ in the next 15 minutes.”

But Senate Health, Education Labor and Pensions Committee Chairman Tom Harkin, who is responsible for the ACA’s provisions on preventive health care, said he’ll be ready to respond. “It’s unfortunate that it’s going to be decided on the Thursday when we get out of here – because that leaves 10 days when we’re not in session – but depending on what the court does, we will be ready when we come back,” the Iowa Democrat said. Referring to the 10-day Senate hiatus following the decision, Harkin said, “I’m just wondering if that politically motivated Supreme Court didn’t plan it that way.”

He added, “If we were here, then we could move rapidly to get something on the agenda and in the hopper to respond to this in a way that the American people would understand that we’re going to move ahead on this.”

But the argument from some GOP leaders is that no matter what the court decides, the American people have already written off the law as a failure.

Missouri Republican Sen. Roy Blunt said Tuesday, “There really have always been three questions: Is it constitutional? Is it a good idea? Can we afford it? And if the answer to any of those is no, we shouldn’t do it. I think the American people have clearly decided that the more they found out about this bill, they believed that the answer to ‘is it a good idea?’ and ‘can we afford it?’ is ‘no’ and ‘no.’ The court will decide the third one, but there’s no question (that) we shouldn’t go forward with this.”

The possible damage to the ACA the Supreme Court might leave in its path is crucial, hence the importance of severability – severing one part of the law and leaving the rest intact.

Asked to hazard a prediction for what might happen Thursday, Republican Sen. Mike Lee, a freshman conservative from Utah and a former law clerk for Justice Samuel Alito, said Tuesday: “I tend to think that they strike down the mandate.” He also said, “It would not be an easy task” for the justices to declare the individual mandate invalid and yet leave the rest of the bill intact. “That would be a grueling task and I’m not sure how they would do it.” He said he “would not be surprised if we see a finding of non-severability.”

Patricia Millett, a former lawyer in the solicitor general’s office during the Clinton administration who has argued 31 cases before the high court, said the justices’ questions during the oral argument showed how difficult it would be to remove one section of the law without damaging the rest: “Do we then create a Frankenstein of a statute that functions in a way that Congress would have never wanted?”

Democrats who designed the ACA are divided on just how significant the individual mandate is and how well the rest of the law could work without it.

“Since the mandate is so central in terms of (insurance) premiums and putting everybody in a pool, we’d have to go back to the drawing board” if the Supreme Court declared the mandate unconstitutional, Harkin said.

He added, “This whole thing (the ACA) kind of holds together. If the court strikes down the individual mandate – which I hope they don’t, because I think there’s a lot of precedents to support it – but if they do, then we are going to have to think of some other approaches and I have been thinking about it and we have things ready to go.”

But Wyden had a different view, saying, “In one sense, the focus on the individual mandate is a little bit overblown,” suggesting it isn’t necessarily the heart and soul of the law. “I got into the bill section 1332, a requirement that states be allowed to obtain waivers (from the mandate) and they could go off and try any of a variety of approaches.”

He said that liberal states could enact single-payer health insurance and conservative states could enact more market-oriented approaches. That waiver takes effect in 2017, but Wyden wants to advance that date to 2014.

“For people who want in good faith to get this done and do it in line with their principles, section 1332 I think is going to get some discussion,” he said.

There’s one big catch with section 1332: Whatever alternative plans states might adopt would need to provide individuals insurance coverage at least as comprehensive as provided under the ACA.